On the surface, Syria seems to offer an ideal case for humanitarian intervention. An incredible 50 per cent of the 23 million Syrians are either internally displaced or refugees living in dire circumstances, further worsening the migrant crisis currently overwhelming Europe. What is worse, mass atrocities have continued under the authority of the Damascus regime since March 2011, and to some degree by the actions of the opposition. Furthermore, for more than a year the Islamic State (IS) group has emerged as a principal opposition force in Syria and is responsible for unprecedented barbarism in large areas of the country under its control. Beyond this, a diplomatic resolution of the conflict has so far failed miserably. The UN has appointed several distinguished special envoys, each of whom have resigned in disgust, unable to rely on ceasefire reassurances from President Bashar Al-Assad. The two intergovernmental conferences held in Geneva, convened with great effort, ended in utter frustration. The United States is far from blameless, seemingly avoiding Russian-promoted compromises early on because it believed that the insurgency was on the verge of victory and diminishing prospects later by insisting that Iran be excluded from the diplomatic process because of Israeli and Saudi sensitivities. To complete this depressing picture, the parties to the conflict seem badly stuck, neither having a path to victory nor displaying any willingness to work toward a credible compromise. The opposition to the Al-Assad government remains incoherent and disunited, and certainly seems incapable of offering Syria a workable alternative. It is not surprising, given this overall situation, especially the spectacle of continued civilian suffering and regional spillover effects destabilising Lebanon, Iraq and Turkey, that there have been renewed calls for humanitarian intervention, most influentially in the form of a no-fly zone (NFZ). It is argued that a well-implemented NFZ could protect the Syrians from the ravages being wrought by the notorious barrel bombs being used in the conflict. These terrible weapons are mainly used by Damascus to make civilian governance in rebel-held areas of the country impossible. Proponents of intervention argue that once an NFZ is established, this will ease civilian suffering and might, in due course, exert sufficient pressure on the Syrian leadership to produce a political climate in which an acceptable diplomatic solution is attainable and this dreadful war can be brought to an end, a result that might even have the benefit of a nudge from Iran and Russia.
RESPONSIBILITY TO PROTECT: The UN recently held a self-congratulatory session celebrating the 10th anniversary of the R2P (or responsibility to protect) norm, while acknowledging that there was work to be done, considering the existence of ongoing killing fields such as in Syria, Iraq, South Sudan, the Central African Republic and North Korea. Notably absent from this list, a supreme instance of diplomatic tact at its hypocritical worst, was Gaza and, more generally, Occupied Palestine, which since 2012 has after all been a state in the eyes of the UN General Assembly. Such other geopolitically touchy places as Kashmir, Rakhine and Xinjiang were also conveniently ignored in this effort to assess the record of R2P's first decade. But leaving these awkward silences aside, at least the question should be asked of why the R2P norm has not been applied to Syria. The answer illuminates what is wrong with the cynical way the world order operates in the post-Cold War setting, being more protective of trade and finance than it is of people and more motivated by oil than by genuine humanitarian rescue missions. The superficial obstacle to a R2P operation in Syria is the geopolitical standoff between states continuing to back the Al-Assad regime and those supporting the opposition. This means that approval of an NFZ as a tactic compatible with the UN Charter is unavailable because of an anticipated Russian veto. Thus, any use of force, such as establishing an NFZ, in either the north or south of Syria, or both, would neither have the backing of the UN Security Council nor qualify as self-defence under international law. This means that such an undertaking would violate the charter in its key principle of prohibiting recourse to non-defensive international force without authorisation from the Security Council, thereby disregarding the requirement of UN approval that is a critical feature of the R2P approach. Proceeding to act outside the UN would further undermine the authority of international law with respect to war/peace issues. A less legalistic and constitutionalist explanation of this blockage arises from the dark side of the R2P precedent set in Libya in 2011, when Russia and China and other Security Council members, despite their reluctance, were persuaded to allow a humanitarian NFZ in Libya to be established, only to find that the UN debate was a notorious instance of bait-and-switch. It was obvious that NATO's intentions from the outset were far more expansive than the authorising resolution in the Security Council allowed. Once the military operations began it immediately employed tactics seeking regime change in Tripoli rather than civilian protection for Benghazi. What seemed to sceptics of the R2P approach to be outright deception in its first major test left a bad taste that has definitely discouraged a cooperative approach to Syria that would engage Russia. The Libyan precedent is not, by any means, the whole story of the relative passivity of the international community, however. Syria's anti-aircraft capabilities have also inhibited coercive action by making it more problematic to suppose that air power can shift the balance quickly and at moderate cost against the Al-Assad regime.
THE KOSOVO PRECEDENT: Then there is the earlier Kosovo precedent in which a humanitarian intervention was controversially carried out without UN approval under the authority of NATO, before the R2P norm existed and in the face of strong Russian opposition. Arguably, the operation was a success. Oppressive Serbian rule ended, and Kosovo and its people were saved from an impending episode of ethnic cleansing similar to the Srebrenica massacre of Bosnian males in 1995. Despite being ignored in the undertaking, the UN willingly entered the post-conflict scene to help Kosovo achieve its transition to political independence. One influential appraisal of the Kosovo conflict pronounced the NATO intervention to be “unlawful” but “legitimate” because it effectively removed a credible threat of mass atrocity at moderate cost. Several problems arise in relying on Kosovo to justify establishing an NFZ in Syria, however. First of all, Syria is a much larger country where a civil war has been raging for more than four years, causing an estimated 300,000 deaths, and the Syrian government is reported to have sophisticated anti-aircraft capabilities. Second, Europe was unified with regard to an anti-Serb intervention in Kosovo, with the partial exception of Greece, whereas the Middle East is so deeply divided with respect to Syria as to be engaged on opposite sides of a proxy war with sharp sectarian dimensions. Third, the opponents of an NFZ, unless persuaded to change their position, are more deeply involved in Syria and have the capabilities to offset the impact of such an operation against their ally in Damascus. Fourth, even assuming that a Syrian NFZ would be effective, the elimination of Syrian air power might actually work to the advantage of IS, which operates exclusively on the ground. Unlike Kosovo, where the US was eager to demonstrate that NATO still had a role in the post-Cold War world, the geopolitical motivation in Syria remains confused and weak, despite the passage of time. Also, the US has had bad experiences with its recent interventions in the region, especially Iraq and Afghanistan, and wants to avoid being drawn into yet another war in a predominantly Muslim country. And fifth, the present scene in Libya and Iraq show that handling the effects of even a militarily successful intervention can lead to prolonged chaos and militia governance. Such experiences of sustained chaos are not viewed by most of the affected population as improvements over the old authoritarian orders held together by the brutality of leaders like Muammar Gaddafi in Libya, Saddam Hussein in Iraq and Al-Assad in Syria. When the alternatives are chaos or order, populist sentiments generally opt for order. This pattern has been evident throughout the region, especially in the aftermath of the short-lived Arab Spring. Furthermore, in the background are considerations associated with a state-centric world order in a post-colonial setting, which in the Middle East has left many bad memories of the harm the European colonial powers did to the region after the collapse of the Ottoman Empire in 1918. Overriding the sovereignty of a state and its capacity for national resistance ignores the experience of the world in the period since 1945, when almost every Western intervention has ended in political failure.
THE WEST'S DILEMMA: So here is the dilemma: to stand by doing nothing while mass atrocities occur year after year in Syria with no end in sight is an intolerable international failure of moral responsibility for human suffering of this innocent civilian population. But to do something that would actually improve the situation is far from obvious, and the record of NFZs in the kind of situation that exists in Syria is not encouraging. General Martin Dempsey, chairman of the US Joint Chiefs of Staff, recently warned against establishing an NFZ in Syria. He pointed out that the Syrian government's anti-aircraft capabilities are at least five times greater than what Libya possessed, including some high-end systems capable of shooting down high-altitude planes. There are alternatives that try to identify tactics that would do something without making the situation worse. The United States could adopt a more assertive approach. Such a step was advocated in a recent report by the International Crisis Group, which believes that a series of non-military and covert initiatives could make a difference in Syria. This proposal argues that this approach should start with what is logistically easier: a focus on the south of the country where moderate anti-regime forces are in greater control, and then, if successful, extending such tactics to the more contested northwest where Syrian anti-aircraft weapons pose a greater obstacle and IS has its strongholds. All in all, the West cannot stand one more failed intervention in the Middle East, nor can it leave unattended a deep humanitarian crisis that is spilling over Syrian borders. The burden in such a tragic situation should be placed on the pro-interventionists. They need to convincingly show how an NFZ can be established and maintained in the face of expected resistance from within and opposition from without. So far, this burden has not been sustained. There are other ways to alleviate civilian suffering and exert greater pressure on Damascus that do not rely on such a blunt and unreliable instrument as an NFZ. In the background is the steadfast refusal of the United States and its European allies to contemplate the occupation of Syria via a ground attack. This is not because of legal or moral inhibitions, but due to the lack of political support for any military operation likely to result in significant casualties for those intervening. There also exists a more drastic diplomatic approach that should have been tried long ago and that still seems worth the effort: bringing Iran and Russia into a peace process as major players and overriding objections by Saudi Arabia and Israel. Such a diplomatic atmosphere might at last create the war-ending conditions for compromise and cooperation that include putting pressure on Damascus. In such an altered setting, either an NFZ, or an equivalent proposal, could find support within the Security Council or such a measure would no longer be needed. Such a diplomatic initiative would admittedly be a long shot, but it would be better than the alternatives of doing nothing or acting outside the framework of the UN and international law with scant prospects of success and a high probability that things would go badly wrong. There are reliable reports circulating that the US rejected a Russian-backed initiative in 2012 that would have included Al-Assad being removed from power. Because Washington was convinced that the Damascus government was about to collapse, say the reports, no diplomatic compromise was needed. At least today there is a more realistic understanding of the balance of forces in Syria and what form of compromise has any chance of being sustained. Unfortunately, with the emergence of Al-Nusra Front and IS, difficult questions arise as to whether any compromise is sustainable unless externally maintained by a major international presence, which itself seems politically unattainable. What this prolonged dilemma in the face of mass atrocities shows is the deficiency of the state-centric world order if appraised from the perspective of human well being rather than national interests. The failures in Syria are not just the shortcomings of diplomacy and manipulations of geopolitics, but are also a severe mismatch between the structures and capabilities of global authority and the vulnerabilities of the peoples of the world. Until these structures are transformed on the basis of human and global interests, Syrian dilemmas in one form or another are bound to recur.
The writer is Albert G Milbank Professor Emeritus of International Law at Princeton University and a research fellow at the Orfalea Centre of Global Studies. He is the United Nations Special Rapporteur on Palestinian human rights.
